The Court of Appeal has allowed two apartment management companies’ appeal against a High Court finding that they were liable after Shakur Ahmed slipped on ice outside his apartment in Clondalkin. The appeal court substituted an order dismissing his claim.
Ahmed fell on the landing outside his apartment at Castlegrange Square on the morning of 21 November 2016, while leaving for work. The High Court accepted his evidence that black ice was present and found that gritting the landing the previous day would, on the balance of probabilities, have prevented the accident. It awarded €56,500 in general damages and €3,701.27 in agreed special damages.
The Court of Appeal said the central issue was whether the companies, as occupiers of the common areas, had breached their duty under the Occupiers Liability Act 1995 by failing to grit the landing. It accepted that the plaintiff’s engineer had given evidence that gritting would have prevented the ice from forming. But the engineer offered no supporting analysis for his view that an appropriate safety system required gritting.
The appeal court said an expert’s opinion about a precaution needs evidential support, such as a relevant standard, established practice or evidence that it is commonly used. The facilities manager for the property management company said none of the 98 developments managed by his employer provided gritting for footpaths or steps. The court concluded that the evidence could not support a finding that reasonable care required the defendants to monitor the weather and grit the common areas when ice was anticipated.
The judgment also rejected other factors relied on in the High Court. Ahmed accepted that the light above his apartment door was his responsibility, and the appeal court said he had seen the wet and icy surface when he opened the door. Evidence about stair nosings showed only that they might have slowed his fall and possibly reduced his injuries, not that they probably would have prevented or changed the accident. The court also said the High Court’s findings about water dripping through the light and excess water on the landing were unsupported by the evidence and were not part of the plaintiff’s case.
The appeal court noted that gritting had not been pleaded, and said expert reports do not replace the requirement to set out a claim clearly in pleadings. It did not need to decide the defendants’ argument that Ahmed was contributorily negligent, because it found that the High Court’s conclusion that they had a duty to grit could not stand.
The court proposed that the defendants receive their costs in both courts. Ahmed was given 14 days to make a written submission on an alternative costs order, with the defendants allowed the same period to respond. In default, the proposed costs order would be made.